The inequality of the 'Equality Act'

By William Wagner

When Thomas Jefferson decided to make freedom of religion the very first provision of the Bill of Rights to the U.S. Constitution, it was protection against legislation like H.R. 5, mislabeled the “Equality Act” by its current sponsors, that he had in mind.

Introduced in the House of Representatives on Feb. 18 and expected to be joined soon by a companion bill in the U.S. Senate, this proposal would “prohibit discrimination on the basis of sex, gender identity, and sexual orientation,” without any meaningful exceptions.

This would seem at first glance to be hard to argue against. Certainly, all human beings need access to housing and other essential accommodations, along with respect for their basic civil rights as image-bearers of God.

If such issues constituted the entirety of this legislation, it would and should indeed be unobjectionable in any enlightened society. But that’s not the case. You don’t have to dig very far into the details of H.R. 5 to realize that it is concerned with tangible equality to about the same extent as Kim Jong-un’s Democratic People’s Republic is concerned about genuine democracy for the people of North Korea.

Which is to say: not much. It’s about power.

There is a significant faction in American politics that is aggressively unwilling to accept the notion that traditional Christians, Muslims, Jews and other believers find today’s innovative interpretations of human sexuality to be incompatible with their sincerely held religious beliefs. These progressive activists will not stop until they have crushed such dissent by all means at their disposal.

Reflect for a moment on how that which was once considered culturally unfathomable in our society – say, “Drag Queen Story Hour” for young children at public libraries – has progressed through the realm of the avant garde and into the commonplace in just a few decades. The Equality Act represents the logical next step: mandating universal endorsement of non-traditional sexual morality under federal law.

Under its provisions, churches unwilling to perform same-sex marriages, or appoint cross-dressing Sunday school teachers, would lose their tax-exempt status as houses of worship. Biological men who announce that they identify as women would be permitted to use fellowship hall women’s restrooms and dressing facilities. Sexual conduct like marital fidelity, or even traditional marriage at all, would no longer be a legitimate consideration for clerical hiring decisions. Christian colleges unwilling to abide by similar requirements would lose their academic accreditation and access to student loans. These examples are just the tip of the proverbial iceberg.

With their First Amendment protections removed, many religious institutions would ultimately face a choice between bowing to the secular god of prevailing culture … and being sued out of existence.

It’s a serious business. But here’s the good news. Colonial Americans had faced similar conflicts, from being forced to pay taxes to support the Church of England all the way back to the flight from oppression that first sent the Pilgrims across the Atlantic. And so it was not by accident that the Founders chose, of the many precious liberties outlined in the Bill of Rights, which to cite as the “First Freedom.”

What they really sought to protect included the right to hold no religious faith at all. In a modern context it is perhaps better understood as freedom of conscience: the right to think for oneself and live accordingly.

They may not have predicted today’s sexual politics, but generally speaking – as with so many other attempts at oppression in America’s history – the Founders saw this coming. They knew that the price of liberty is eternal vigilance. And they gave us the democratic tools to respond appropriately to protect the rights they rightly regarded as not just endowed by government, but inherent and unalienable.

Do your part to stand up for the First Freedom. Upon it all others depend.

Professor William Wagner is president of the Great Lakes Justice Center. He is a former federal judge and is Distinguished Professor Emeritus at Western Michigan University Cooley Law School, having taught ethics and constitutional law for more than 20 years.

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